Willis v Workers Compensation Nominal Insurer (iCare) - [2021] NSWPICMP 41

DETERMINATION OF APPEAL PANEL
CITATION:	Willis v Workers Compensation Nominal Insurer (iCare) [2021] NSWPICMP 41
APPELLANT:	Richard Willis
FIRST RESPONDENT:	Kelvin Oates
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
APPEAL PANEL:	Member Brett Batchelor Dr Philippa Harvey-Sutton Dr Brian Noll
DATE OF DECISION CATCHWORDS:	8 April 2021 WORKERS COMPENSATION- Claim for further lump sum compensation for injury sustained by the appellant in 1996 when employed by the first respondent as a shearer; the AMS was also asked to provide a total WPI assessment for threshold in respect of the body parts for which the appellant worker had received compensation under the Table of Disabilities; the AMS issued a MAC containing assessments of permanent impairment/loss of use for the body parts in respect of which compensation pursuant to section 66 of the 1987 Act had been previously awarded, and also issued a MAC containing an assessment of WPI in respect of injury to those body parts; In each case, he deducted ¾ of the assessments for impairment resulting from an earlier period of employment of the applicant as a shearer, and 1/8^th as being due to the effects of age related factors occurring since the cessation of his employment with the first respondent in 1996; the appellant’s injury was one in accordance with section 4(b)(ii) of the 1987 Act, the date of which was determined in accordance with section 16 of that Act; Held- the deduction of both the ¾ of the assessments for impairment/loss of use and WPI resulting from the earlier period of employment as a shearer, and the 1/8^th as being due to the effects of age related factors occurring since the cessation of his employment with the first respondent in 1996, was an error on the part of the AMS (now a Medical Assessor); Ozcan v Macarthur Disability Services Ltd [2020] NSWWCCPD 21 and Secretary, New South Department of Education v Johnson [2019] NSWCA 321 relied upon; the Appeal Panel revoked the two MACs issued by the AMS and issued new certificates containing the assessments made by the AMS without the ¾ and 1/8^th (total 7/8^th) deductions made by him from those assessments.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 November 2020 Richard Willis (the appellant/Mr Willis) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (formerly referred to as an Approved Medical Specialist – ‘AMS’, and hereinafter referred to as ‘the Medical Assessor’), who issued a Medical Assessment Certificate (MAC) on 21 October 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Willis v Workers Compensation Nominal Insurer (iCare) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPICMP 41
Decision Date: 8 April 2021

CaseChat Overview and Summary

Willis appealed against the decision of the Appeal Panel, contending that the deductions made by the AMS should not have been revoked by the Appeal Panel. The dispute in this case was over the deductions made by a Medical Assessor (AMS) in relation to the appellant's workers compensation claim, specifically concerning the assessment of his workers compensation injury and the determination of a further lump sum compensation. The case was heard in the Workers Compensation Nominal Insurer (iCare) court.

The legal issues that the court needed to decide were whether the deductions made by the AMS were appropriate and whether the Appeal Panel's decision to revoke those deductions was justified. The court was tasked with interpreting the relevant legislation and determining whether the AMS and the Appeal Panel had correctly applied it.

The court found that the deduction of both the ¾ of the assessments for impairment/loss of use and WPI resulting from the earlier period of employment as a shearer, and the 1/8th as being due to the effects of age-related factors occurring since the cessation of his employment with the first respondent in 1996, was an error on the part of the AMS. The Appeal Panel's revocation of the two MACs issued by the AMS and the issuance of new certificates containing the assessments made by the AMS without the ¾ and 1/8th (total 7/8th) deductions made by him from those assessments was upheld. The Appeal Panel's decision was deemed to be correct and in accordance with the legislation.

The Appeal Panel's decision was upheld, and the new certificates issued by the Appeal Panel were confirmed as the correct assessments. The appellant's appeal was dismissed, and the decision of the Appeal Panel was upheld.

Orders